51 Tex. 494 | Tex. | 1879
The judgment in this case must be reversed, for fundamental errors apparent upon the record, in this: that it is uncertain and incomplete; that it purports to adjust all the equities between the parties when the pleadings did not authorize it; that there was a personal judgment rendered against the defendant E. G-. Hanrick, which was not warranted by the case as presented by the record.
As the cause must be remanded, we proceed to indicate our opinion of the law upon questions which the record shows may arise upon another trial.
1. Neither upon principle—because tending to embarrass the negotiability of commercial paper—-nor upon authority does the minority of two of the plaintiffs, as the holders of the notes sued upon, exempt them from due diligence by suit, in order to secure and fix the liability of the defendant Han-rick, as indorser, under article 229 of Paschal’s Digest. (Shepard v. Phears, 35 Tex., 763.)
2. Under our statute, the notorious insolvency of J. E. Burt, the maker of the notes, if alleged and proven, would be a sufficient excuse for such failure to institute suit. (Paschal’s Dig., art. 225; Insall v. Robson, 16 Tex., 128.)
If the testimony should show that the only property Burt had was a claim to the land in question under a title bond from Hanrick, and that he had fled the country without a compliance on his part with the terms of the same, and that by reason thereof Hanrick, who already had the legal title to the land, took possession of the same, or made another con
3. If the indorsement by Hanrick of the notes sued on was simply to transfer the right of action thereon to Blocker, without recourse on Hanrick, this, as between him and Mrs. Alexander and the children of Blocker, would be a sufficient defense to prevent the recovery by them of a personal judgment against Hanrick. (Wade v. Wade, 36 Tex., 529.)
4. If after the death of Jesse Blocker, his wife (now Mrs. Alexander) duly qualified as surviving wife under the statute in such cases made and provided, and if after Burt fled the country she, as such duly qualified surviving wife, by agreement with Hanrick, went upon the land and assumed to carry out the contract of Burt, and afterwards the contract was can-celled, and she voluntarily abandoned the same and redelivered up the possession of the land to Hanrick, and retained the notes sued on simply as evidence of a claim against Burt for personal damages for breach of his contract, this would be a forfeiture and abandonment of the right of action, both" for herself,and for the minor plaintiffs, against Hanriclc, for a personal judgment and also for a lien on the land.
If, however, she did this without having thus qualified as surviving wife, she thereby forfeited and abandoned, as above stated, her own individual rights, but did not prejudice the rights of the minor plaintiffs.
5. If their rights have not been forfeited and abandoned, the minor plaintiffs, for the payment of their half interest in the notes sued on, would be entitled to a lien on the land subordinate to the prior lien of Hanrick; and Mrs. Alexander would also be entitled to such lien as to her interest, if her right of action therefor has not been forfeited and abandoned as above stated.
6. That Hanrick should have a reasonable time to voluntarily pay off and discharge this lien, and in the event that he should fail to do this, the land should be sold as under exe
Judgment reversed and cause remanded.
Reversed and remanded.
